What happened to uncle's will?

Dear Len & Rosie,

My uncle passed away five years ago. Since he was estranged from the family at the time of his death, we were not notified, and were unable to collect his personal belongings. A person he met not too long before his death took over and she was supposedly named in my uncle’s will or revocable trust. My daughter was named to receive her uncle’s doll collection but we never received a copy of the will.

The home is still titled in my uncle’s name today. I even called my uncle’s number and his “friend” answered. She said she didn’t know when my uncle would be home, even though he died five years ago. Is there a way to find out where the will is or if there is one?  If there is no will, can my mother, his closest living relative, petition the court for possession of the home?

Stacy

Dear Stacy,

It sure looks like something fishy is going on here. There’s a small possibility that there’s a will or trust that leaves everything to your uncle’s friend, but if there was, the property should have been probated already. And if there was a probate, then notice was supposed to have been given to your uncle’s parents, if alive, or his brothers and sisters or their living descendants. You can check with the Superior Court in the county where your uncle resided on his death to see if any probate was opened, but chances are that never happened.

What’s more likely to be the case here is that this “friend” has been squatting in your uncle’s home for five years and there may not be a will or trust at all. So what your family should do is to hire a lawyer, and petition the court to administer your uncle’s estate in probate. Because there is no will, at least that you know of, your uncle’s estate will be distributed by intestate succession - either to his parents, or brothers and sisters and their living descendents, depending on who was alive at the time of your brother’s death.

If you do this, you’ll get appointed by the court as the administrator of your uncle’s estate. Then, you can send notice terminating this woman’s tenancy and follow through with an eviction when she refuses to leave. This is where it can get sticky. You may have a difficult time getting her out of the home because she could claim she owns the property by adverse possession.

Under adverse possession, if she has openly and notoriously held possession of your uncle’s home for at least five years, and if she has paid the property tax during that time, she may be able to establish ownership of your uncle’s home. So do not delay. Get a lawyer ASAP and file for probate, because if more than five years has passed since your uncle’s death, it may be too late.

The lesson here is simple. If a family member dies and something doesn’t pass the smell test, don’t sit on your hands wondering what’s going on. It’s better to take legal action sooner rather than later. Even if you win and your family gets to inherit your uncle’s home, we’re willing to bet that those dolls you want for your daughter are long gone.

Len & Rosie